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10.06.17

Design Patents Should Not Exist, Trademarks and Copyrights Already Cover Designs

Posted in Apple, Patents, Samsung at 3:57 am by Dr. Roy Schestowitz

Zach Snyder is listed as an “Inventor” of this:

Zach Snyder patent

Summary: The absurdity of broad patents on design ideas which are about as ludicrous as patents on paintings or sketch arts

WE have, for a long time, said that patents on designs should not exist. Trademark law already covers designs, sometimes copyright law covers these too.

This new book title irked us a little. Patently-O promoted it yesterday. The book’s name, “Design Rights”, is misleading. These are not “rights” per se. We often see words like assets, property, rights, protection etc. misused. Patently-O misuses these words too.

“The book walks through design protection available the various global regions,” Patently-O wrote, “US, Europe, Japan, China, India, S.America, etc – and is designed to help practitioners both understand the law and get started on strategy.”

It talks about “practitioners”, i.e. those who make a living not from designs but from telling designers that they need patents.

Design patents too often (more often than not) look like satirical ones. Patently-O gave this example the other day and even Crouch made fun/poked at it. To quote: [via]

Don’t stare too deeply into the pattern above – it embodies Columbia Sportswear’s U.S. Design Patent No. D657093 – covering “the ornamental design of a heat reflective material, as shown and described.” The recent $3 million jury verdict in Columbia Sportsware v. Seirus Innovative Accessories appears to be the first post-Samsung verdict on design patent damages.

Look at it. Ridiculous! How can that be monopolised? It’s almost outrageous.

The Samsung verdict Crouch alludes to is the Apple case, which revolves around a ridiculous design patent dispute. There’s an update on the case in this post from Florian Müller:

Just this week, the Wall Street Journal reported on the high-volume business Apple is doing with Samsung, a key supplier of components for various products including the new flagship iPhone, the iPhone X, on which Samsung will reportedly make $110 per unit. But as device makers, the two remain fierce competitors–and adversaries in court.

And on the design patents:

In the famous design patents case, the DoJ agreed with Samsung on the key legal question (article of manufacture). It additionally brought up a procedural question that could have enabled Apple to defend the original damages award. Now, with respect to the more recent petition relating to invalidity, injunctive relief, and infringement, the DoJ cautiously distances itself from the en banc opinion and indicates only between the lines that it may disagree, to some extent, from a policy perspective (“rigid rules for demonstrating obviousness” etc.). It would have been nice if the DoJ had been clearer about the implications of this for U.S. tech companies and for the work of the United States Patent and Trademark Office, which is supposed to protect real technological progress, which is hard to do if even weak evidence of non-obviousness gets a lot of weight. The DoJ could have expressed more clearly a concern over what this means for patent quality, but unfortunately it didn’t.

Those who have actually seen some design patents (not registered designs) will know that it’s a bubble of bad patents. Patently-O recently showed the explosive growth of such patents at the USPTO.

What next for patent maximalists? The crooked EPO has already begun granting patents on life itself, rendering EPs a laughing stock.

09.30.17

Apple is the Next BlackBerry

Posted in Apple, Patents, Samsung at 11:39 am by Dr. Roy Schestowitz

Blackberry Guardsman

Summary: BlackBerry continues going down the route of ‘monetising’ its patents rather than actually making phones — something towards which even Apple increasingly gravitates

It was exactly two weeks ago that we wrote about BlackBerry becoming aggressive with patents. Only days later we found out that their chief patents guy had left. BlackBerry has a large number of patents granted by the USPTO, even though BlackBerry is Canadian.

BlackBerry, as we have stated in nearly a dozen articles, was reduced to nothing but patent litigation and “licensing” (euphemism for shakedown/settlement/extortion, which otherwise culminates in litigation). Their producing part of the business is more or less defunct (depending on who one asks; they still need to provide updates to existing customers).

“BlackBerry’s Software Sales Contribute To Share Value Increase,” said this headline just before the weekend. “BlackBerry signs first licensing deal for its version of Android,” said other headlines [1, 2] from Thursday. These deals have a lot to do with design patents and even hardware (especially keyboards that BlackBerry is widely known for). To quote:

BlackBerry stopped making its own phones last year and began licensing its technology and brand to other companies. Up to this point, those deals have included BlackBerry’s hardware patents, some of which go back to the nascent days of the smartphone era. This deal shows there is demand for the company’s version of the Android software on its own, said Alex Thurber, head of mobility solutions division for the Waterloo, Ontario-based company.

We expect Apple too to end up like this. Why? Because Android OEMs are taking away its market share, little by little.

Yesterday, citing the likes of Rebecca Tushnet (not patent maximalists for the most part), Florian Müller wrote about Apple’s design patent case (there’s more than one) against Samsung. Here’s the latest:

Apple and Samsung have meanwhile responded to each other’s proposed tests (Apple brief, Samsung brief). They accuse each other’s proposal of being inconsistent with the Supreme Court decision, other case law, and statutory law. Up to a certain degree, I agree with Mr. Levy’s criticism of Apple’s proposed test: Apple is simply trying to salvage a $400 million award through a test that has rather subjective elements such as “how” a design was used, “how” a product was sold, or “the degree to which the asserted article of manufacture is physically and conceptually distinct from the product as sold.” That kind of test would be a recipe for lengthy trials and confused juries, in many cases even hung juries.

[...]

A really interesting panel debate–the 90-minute recording is worth watching in its entirety– took place in Washington D.C. the week before last. A Law360 reporter attended and noted that this design patent damages issue divides the patent world. Professor Rebecca Tushnet (Harvard) published some of the panelists’ statements on her blog. I’ll probably get back to some of what was said on that panel at the next procedural juncture.

Apple is eager to win this legal battle because if (or when) Samsung gives up Apple can then go after other OEMs, not necessarily with lawsuits but with “licensing” demands.

09.21.17

East Asia’s Patent Peril and the Curse of Patent Trolls

Posted in Apple, Asia, Microsoft, Samsung at 3:42 am by Dr. Roy Schestowitz

From manufacturing to merely taxing manufacturers?

A factory

Summary: The high cost of China’s new obsession with patents and the never-ending saga of Samsung (Korea), which gets dragged into courts not only in the US but also in China

THE unit once owned by Google (now Lenovo) — namely Motorola‘s mobile business — is in the news again. IAM says that the judge who oversaw Microsoft’s patent war on Linux (Android/Motorola) is upset that Britain now enables patent trolls to operate in London (we wrote a lot about this decision at the time). Huawei, a Chinese giant and leading Android OEM, was attacked by Ericsson’s patent troll. As IAM puts it:

US district court judge James Robart has taken aim at the decision handed down by Justice Colin Birss in the high profile London High Court SEP/FRAND case of Unwired Planet v Huawei, decided earlier this year. Speaking at the annual IPO meeting in San Francisco yesterday, Robart – who handed down the famous Microsoft v Motorola decision in 2013 and sits in the Western District of Washington – said that Birss was wrong to offer specific royalty rates for the technology in question, rather than offering a range, and stated that he did not expect the judgment to be particularly influential in US courthouses.

[...]

Robart’s claim that the Unwired decision wouldn’t have much influence over US courts has previously been made by former Chief Judge for the Federal Circuit Paul Michel who told this blog after the London ruling was handed down that the US legal system was traditionally inward looking and so rarely paid much heed to overseas cases. Of course, judges around the world often disagree on key areas of patent law – the Supreme Court’s rulings in several patent eligibility cases has meant that the US is out-of-step with many jurisdictions in sectors like medical diagnostics – but Robart’s comments highlight the degree to which the law in FRAND licensing remains unsettled.

This decision ought to have been a wake-up call for Huawei, Lenovo (now holding Motorola’s ‘assets’), and China in general. Patent maximalism harms them everywhere. IAM also wrote about this collapse of a Chinese company that wrongly relies on patents rather than production. To quote:

Sanan Optoelectronics failed to take over Osram after having its bold $8.2 billion bid rebuffed late last year. But the Chinese LED maker has turned to the patent market to shore up its IP position, most recently buying a pair of portfolios from Sony. As increased scrutiny from regulators in both Europe and the United States threatens to scuttle Chinese firms’ more audacious M&A endeavours, there is still significant scope for them to acquire IP in smaller-scale deals.

[...]

A USPTO database search turned up just one previous example of Sony transferring patents to a Chinese entity. In 2015, it assigned six imaging-related assets to Hikvision, a video surveillance company whose controlling shareholder is a state-owned enterprise. So it appears to be a relatively rare occurance. Throughout this year and going back to 2015, Sony has steadily transferred LED-related assets to JOLED, an entity which was formed to combine the OLED functions of Sony, Panasonic and Japan Display in 2014. The Sanan sale perhaps shows that Sony has identified assets in the technology area which are not needed by its spun-out business but can find willing buyers on the open market.

As we said here many times before, this strategy of China’s patent gold rush (with government support/backing/financing) is going to be self-destructive. China is, indeed, becoming a patent trolls hub (self harm). IAM wrote about it the other day in relation to Samsung coming under fire. Shortly beforehand, Florian Müller wrote about the Apple v Samsung design patent case — a case which was discussed some days ago:

About a month and a half ago, Judge Lucy Koh of the United States District Court for the Northern District of California held that Samsung had not waived its “article of manufacture” argument in the first Apple v. Samsung case. That was another step forward for Samsung in its quest to get the damages award reduced. But prior to ordering a new trial on design patent damages, Judge Koh ordered briefing on various questions to be resolved first.

Last week, the parties filed their answers to the court’s questions (Apple, Samsung). Samsung argues that Apple has the burden of proof and that the only way the damages question could be resolved without a new trial would be for the court to find an evidentiary failure on Apple’s part. Apple refers the court to the Solicitor General’s Supreme Court brief. According to Apple, after a prima facie showing regarding the article of manufacture that infringes a design patent, the burden of proof is on the defendant to show that a component of that product is the appropriate basis for a disgorgement of infringer’s profits. While I tend to consider Samsung’s proposition better policy, I have no idea to what extent Judge Koh may be influenced by the DoJ’s Supreme Court brief.

Design patents were certainly on the line after the case had been escalated to the Supreme Court and then sent back down to lower courts. As one publication put it the other day:

The U.S. Supreme Court furthered a legal dispute last year as it sent a patent law case involving the two biggest smartphone makers, Apple and Samsung, back to lower courts. Intellectual property experts are now looking to those courts to better define an “article of manufacture” and determine how to place value on individual features in a complex device.

This case seems like it has lasted forever (so far). The only party happy about it is the patent ‘industry’, which is wasting time bickering over patents instead of creating something.

09.06.17

When Patent Maximalists Say ‘Innovation’ is Moving to Asia or China They Mean Litigation Chaos Moves There

Posted in Antitrust, Asia, LG, Patents, Samsung at 6:51 pm by Dr. Roy Schestowitz

The latest ‘revolution’ in China is deeply self-corroding

China flag

Summary: China’s short-term patent policy already backfires by attracting patent parasites (growing at the expense of producing industries)

IT was only days ago that mainstream media relayed the lie (unsupported by facts) that the US loses leadership to China (in the patents sense). All that the US ‘loses’ is patent trolling and other such nuisance. Earlier today we saw this new press release whose headline made it abundantly clear that patents are not about innovation but about “blocking competitors” (their words, i.e. opposite of innovation).

“In Korea (the South), which in principle does not allow patenting of software, there are two massive corporations which dominate the charts (not only in Korea).”As we have been noting here for about a year, China is creating a massive patent bubble; last year alone, for example, over a million patent applications were filed! Yes, over a million! Imagine how rubbish these must be to reach/added up to such a figure!

In Korea (the South), which in principle does not allow patenting of software, there are two massive corporations which dominate the charts (not only in Korea). Those corporations are LG and Samsung (especially the latter). Design patents should generally not be granted; that’s what copyrights and trademarks (or “registered designs”, not patents) are for, but Samsung joins this gold rush anyway, possibly in anticipation of more Apple lawsuits (this matter may soon reach the US Supreme Court). The other day Florian Müller said that the “Korean court denies Qualcomm’s motion to stay execution of KFTC antitrust ruling,” referring to yet another headache that we covered here before. The background:

Last December, the Korea Fair Trade Commission (KFTC) handed down a decision against Qualcomm that U.S. tech companies welcomed. The following month, the FTC and Apple sued Qualcomm on antitrust grounds in California. In March, it became known that Qualcomm’s refusal to licenses its standard-essential patents (SEPs) on FRAND terms to other chipset makers is one of the various concerns the Korean competition authority has.

Korea is a smart country; unlike China, it’s not being rushed into the patent bubble. It’s not being shamed into patent maximalism, either. Their regulatory agencies have already dealt big blows to US corporations such as Intel (we covered this at the time) and they don’t let bullying become the norm. Also, as we noted here many times before, Korean companies very rarely initiate legal action with patents (unless attacked first). It’s something about their culture.

“Korea is a smart country; unlike China, it’s not being rushed into the patent bubble.”Compare that to China.

“China’s top patent owner Huawei,” as IAM put it the other day, is ‘collecting’ patents right now (from a Japanese company). Here is what IAM predicts:

China’s top patent owner Huawei has continued its third-party acquisition efforts with the recent pick-up of seven US patent grants from Japanese company Hitachi. Several weeks on from that transaction, it doesn’t look like the apparent patent sale was part of a larger deal to settle the US legal tussle between the two companies, which is ongoing in the Eastern District of Texas. Instead it underline’s the Japanese company’s all-of-the-above approach to monetising patents as its business is transformed.

Those unruly patent zealots, as IAM put it in another article, have devolved into a “shouting match” in China:

A somewhat hostile question from an Apple-linked private practice lawyer sparked a heated and, at times, ugly exchange of the sort rarely seen at patent conferences in Beijing this afternoon. Apple and Chinese firm Iwncomm have been battling it out in Chinese courtrooms for more than a year, and attendees at the China Patent Annual Conference, which kicked off today at the China National Convention Center, saw it play out before their eyes.

Iwncomm is far from a household name, even in its native China (where it’s also known as Xi’an Xidian Jietong). But its IP profile has risen significantly since it became the first plaintiff to obtain an SEP-based injunction in China. In a session focused on IP licensing which also featured Apple senior legal counsel Steve Wang, Iwncomm managing director Cao Jun introduced his company and explained his view on why China shouldn’t be afraid to strengthen IP protections.

We have become accustomed to a lot of legal ‘action’ in China, unlike say in Korea or Japan (their courts are tougher on patents). As of this week, IAM calls some of the most horrible patent trolls “PIPCOs” (avoiding the term “troll” like Trump avoids “climate change”). It’s about china again (ZTE) and here is what the business model is compared to:

The PIPCO model is not entirely dead — the success of the likes of InterDigital, Rambus and Finjan show that it can still work for a select few — but it’s clear that most licensing businesses in the future will remain private.

We have been writing quite a bit about Finjan lately. It’ll hopefully perish in the US, but the likes of it seem to have spread eastwards to China.

If China doesn’t recognise just how misguided its patent policy is, not much will be left there other than lawsuits (as opposed to production). This is of course good for patent zealots like IAM and its funding sources, but very bad to productive companies.

08.04.17

The United States Supreme Court Should Further Restrict Patent Scope and Not Question PTAB’s Work (Which Merely Enforces That Scope)

Posted in America, Apple, Courtroom, Patents, Samsung at 4:29 am by Dr. Roy Schestowitz

PTAB has probably been the best when it comes to enforcing Supreme Court decisions such as Alice

United States Supreme Court

Summary: A glance at the ongoing debate over which patent case/s the Justices of the United States Supreme Court should look at next

PTAB is a good, valuable ally of the software industry, for it invalidates a lot of software patents. PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies).

“PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies).”Based on this new press release, a lawsuit which was mentioned here earlier this week got escalated by the defendant, which sought help from PTAB. Taser (now renamed) is battling to dodge PTAB’s scrutiny (as it can potentially invalidate the patent they use aggressively) and this time it got its way. But that’s not the end of it. PTAB is generally a get-out clause in case a patent lawsuit is meritless based on the patent/s at hand. Failing PTAB, there are still judges and sometimes also a jury to determine whether a patent asserted is bogus or not. Just because an examiner at the USPTO decided to grant a patent doesn’t necessarily mean it’s both novel and patent-eligible. Prior art is sometimes discovered in court proceedings and expert witnesses can attest to the triviality of some patents. In some cases, the trial itself constitutes misconduct; we gave an example of that yesterday, citing Patently-O, whose contributor David did a followup. “First off,” he wrote, “according to the panel-majority, mere negligence by litigation counsel is enough to justify an adverse inference under the law of this regional circuit…”

“As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents.”Over the years we have given many examples of misconduct, e.g. companies asserting patents that they don’t even ‘own’ (are assigned). In some cases, expired patents are being used to intimidate companies.

As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents. Moreover, its lead writer (Crouch) is still trying to slow down or discourage CAFC's support for PTAB. Yesterday he did that again. To quote the relevant paragraph:

A third petition for writ of certiorari to the United States Supreme Court has now been filed stemming from the Federal Circuit’s Rule 36 Debacle. Despite the need for clear guidance on the implementation of AIA Trials, most such appeals are being decided by the Federal Circuit without any opinion. I have argued that the process violates a provision of the Patent Act that requires an the court to issue an opinion in cases on appeal from the Patent & Trademark Office.

We already wrote extensively about why it’s justified. There’s a massive ‘scatterback’ of appeals from PTAB and CAFC cannot possibly issue a pertinent written opinion for each individual appeal. Crouch should know that. He’s a law professor, but at the same time he’s also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges).

“He’s a law professor, but at the same time he’s also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges).”The US Supreme Court (SCOTUS) is already busy with more important matters, such as patent scope and patent trolls. In fact, it has already deemed business methods-related patents invalid. There’s Bilski and Alice. Now it’s down to the courts below SCOTUS to obey precedents/prior decisions. But Crouch wonders aloud whether the matter will be revisited yet again:

Although the Federal Circuit walked through its Alice/Mayo analysis, I expect that a more infringer-friendly panel would have almost certainly sided with the district court. Now, Openet has petitioned the Supreme Court for writ of certiorari – arguing that the Federal Circuit improperly reached beyond the clearly overbroad claims when making its decision.

“Rao decided to write for The Hill about an Apple case against an Android OEM.”Experience suggests that almost always the SCOTUS will overrule the Court of Appeals for the Federal Circuit (CAFC). But does it need to revisit something it already dealt with? Even Crouch touches that aspect (see the above post).

In other news, yesterday there was a publication from Nagesh Rao, who is described as “a former U.S. patent examiner and senior policy advisor with the Department of Commerce-U.S. Patent and Trademark Office and Office of Innovation and Entrepreneurship. He represents the United States as an Eisenhower Fellow and advisor to the American Association for the Advancement of Science (AAAS) Lemelson Invention Ambassadors Program.”

“Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.””Rao decided to write for The Hill about an Apple case against an Android OEM. It was the biggest Android OEM at the time the lawsuit was filed. He said that the “Supreme Court could strengthen the patent system” and by strengthen he means make more strict, not what “STRONGER” means in that infamous bill (“The STRONGER Patents Act” is reducing their quality to spur frivolous litigation).

Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.”

People inside the EPO have told us that highly dubious patents (EPs) are being granted to Apple in Europe as well. It’s a global problem.

Patent quality is brought up by Rao as follows:

I mentioned patent quality is at the core of this case. As a former U.S. patent examiner that’s an issue I feel very strongly about. After all, if not for low-quality patents (it’s not just my opinion, the U.S. appeals court that originally found some of Apple’s controversial patents to be invalid would likely agree), we would not even be having this discussion right now.

The Supreme Court should hear this case and seize the opportunity to defend higher patent quality for a number of reasons – an issue that the USPTO has for years attempted to address, and made great strides in assuring. And in what some view as a positive step towards review, on Monday, the Court asked the acting U.S. Solicitor General to weigh in on the case.

We certainly hope that the Supreme Court will assess this case and overturn it in favour of Free software (Android). In this day and age when software is free (usually in terms of freedom and also price) there’s no room for all this ‘taxation’ by declining firms — at least in the mobile sector — such as Apple.

05.27.17

Patent Dangers to Linux and Android: Qualcomm, Apple, and Nokia

Posted in Antitrust, Apple, GNU/Linux, Patents, Samsung at 6:24 am by Dr. Roy Schestowitz

Summary: The prevailing problem which is companies with mountains of patents going after OEMs, using a bulk of infringement accusations, and demanding ‘protection’ money

IN the US, Qualcomm has just made a move to stop Apple, which already stopped paying Qualcomm and is leading somewhat of a rebellion against Qualcomm (under trouble in multiple continents).

In Korea, Qualcomm is in troubled waters too. Korean companies like Samsung are also affected, so the actions against Qualcomm are bipartisan from the iOS/Android perspective. Qualcomm upsets everyone.

Days ago, according to this, “Apple had a deadline for responding to Samsung’s mid-March petition for writ of certiorari” (request for Supreme Court review) in the second California Apple v. Samsung case, which had received very significant support from software and Internet companies, non-governmental organizations and law professors.”

Apple’s patent war on Samsung seems to have become a distraction as meanwhile, in the past few years, Huawei became the largest Android OEM. That used to be Nokia, which is now preoccupied with patents and has just settled with Apple again. The Finnish media wrote that “Nokia and Apple settle intellectual property {sic} lawsuits, become partners” (they mean patents). It happened just a few days ago:

Finnish communications giant Nokia and US tech behemoth Apple announced on Tuesday that they have settled all of their litigation and signed a patent license and a business cooperation agreement.

As noted here, “Apple and Nokia announced a settlement today after only about 5 months of litigation. Apple v. Samsung has been going for more than 6 yrs…”

What a waste of time and energy. Only lawyers profit from these battles.

As noted in this article, we don’t know who pays and how much, but we can only guess that Nokia is paid by Apple, for it has more patents in this area and reports were always suggestive of a demand from Nokia (for a number of years):

The companies said today they have settled all outstanding litigation and agreed to a patent license. While exact financial terms are confidential, Apple will be making an up-front cash payment to Nokia, followed by additional payments over the course of the agreement.

Microsoft has already spread Nokia’s patents to patent trolls, scattering these in a way that harms Android. It’s problematic for many reasons and we mostly care about the effect on GNU/Linux.

05.14.17

Industry Giants Challenge Qualcomm’s Patent Practices While the Federal Trade Commission (FTC) Closely Examines Such Behavior

Posted in America, Antitrust, Apple, Hardware, Patents, Samsung at 3:10 am by Dr. Roy Schestowitz

Qualcomm doesn’t do much but collect patent royalties

Qualcomm building
Photo credit: Coolcaesar

Summary: Scrutiny of Qualcomm’s patent aggression and coercion — scrutiny that can profoundly change the way software patents, SEPs and FRAND are viewed — as seen in various amicus briefs (amici) from industry giants that are affected

THE many patents granted primarily by the USPTO to Qualcomm continue to represent a threat to the productive industry, as we noted earlier this year [1, 2, 3, 4].

“Remember that it was a Samsung foe, Apple, which played a big role in this battle and has in fact stopped paying Qualcomm (which sent the stock nosediving).”Belatedly, companies are complaining and regulators take a closer look at Qualcomm’s behaviour. Even a Microsoft AstroTurfing/front group, Association for Competitive Technology (ACT), is going to intervene, based on Florian Müller, who wrote a couple of new posts late on a Friday [1, 2], having just scrutinised new documents.

“Intel’s brief in FTC v. Qualcomm is pretty good,” he wrote. “It was just too late for me to still comment on it yesterday. Will do so next week.”

He quotes from the brief: “For years Qualcomm has maintained an interlocking web of abusive patent & commercial practices that subverts competition on merits” (hypocritical for Intel to state that).

Here is what Samsung had to say. “Samsung just filed an amicus brief supporting the FTC against Qualcomm,” Müller noted, “explaining how it’s being harmed by QCOM’s conduct in two biz areas.”

From his post about it:

In today’s opposition to a Qualcomm motion to dismiss the FTC’s antitrust complaint, the FTC says “[o]ther chipmakers may not wish to sue Qualcomm for a number of reasons, including fear of countersuit for infringement, escalation, litigation fees, disrupted relationships with OEMs [...].” While all of that can affect a chipmaker’s calculus, the situation is far worse for device makers: they have to fear massive disruption should Qualcomm cease to supply its chipsets to them. Also, Qualcomm’s rebate deals (that effectively result in some patent royalties being paid back) appear to be tied to total abstention from any kind of antitrust action against Qualcomm. All in all, it’s like a strangehold on an entire industry.

Remember that it was a Samsung foe, Apple, which played a big role in this battle and has in fact stopped paying Qualcomm (which sent the stock nosediving). Here is some of the latest:

The Federal Trade Commission (FTC) has just responded to Qualcomm’s motion to dismiss its antitrust complaint in the Northern District of California….

We have studied some of the above and it certainly seems like most of the industry, not just the FTC, is eager to put an end to Qualcomm’s exploitation of software patents to make money out of nothing but “licensing”.

04.21.17

Affordable and Sophisticated Mobile Devices Are Kept Away by Patent Trolls and Aggressors That Tax Everything

Posted in Apple, Patents, Samsung at 11:27 am by Dr. Roy Schestowitz

With hundreds of thousands of patents (around the world) on mobile technology, including SEPs, one is unable to operate without being sued ad infinitum

Patent thicket
Reference: Patent thicket

Summary: The war against commoditisation of mobile computing has turned a potentially thriving market with fast innovation rates into a war zone full of patent trolls (sometimes suing at the behest of large companies that hand them patents for this purpose)

THE MOBILE market (as in mobile phones, connections etc.) is a sordid mess when it comes to patents. It’s so saturated with patent thickets that one is unable to operate without being sued (or simply overtaxed) from every single direction. Simple devices now cost more than a sophisticated personal computer (where patents are expired or barely enforced anymore).

“Simple devices now cost more than a sophisticated personal computer (where patents are expired or barely enforced anymore).”As mentioned in this older post of ours, Samsung now need to pay a lot of money to Rembrandt Wireless (Rembrandt Wireless Technologies LP), which is a patent troll that relied on a jury in Texas (the capital of patent trolling). Here is one new article about it:

The US Court of Appeals for the Federal Circuit remanded part of a patent suit earlier this week, meaning that Samsung may not have to pay the full $15.7 million in damages to Rembrandt Wireless.

Handed down on Monday, April 17, the Federal Circuit’s ruling disagreed with the district court’s denial of Samsung’s motion based on the marking statute, so it remanded the issue.

Samsung is not even an American company, it is Korean.

“Will we finally see the demise of Qualcomm, which is a relic that has been reduced to just patent aggression?”To make matters worse, a ‘supertroll’, Qualcomm [1, 2], has been grabbing a lot of money (possibly billions) from Samsung and only a decade too late Judge Lucy Haeran Koh, an American judge of Korean descent, decides to look into the case. As Florian Müller put it the other day: “After last week’s joint case management statement in FTC v. Qualcomm (Northern District of California), Qualcomm filed a revised proposed schedule on Monday. Judge Koh had denied a stay of discovery and asked Qualcomm to revise its proposed schedule accordingly. Now Judge Koh has set a schedule that is materially consistent with the FTC’s proposal and a lot more ambitious than Qualcomm’s revised schedule (this post continues below the document)…”

Will we finally see the demise of Qualcomm, which is a relic that has been reduced to just patent aggression? IAM, the voice of patent trolls, says this week that “Qualcomm reveals $150 million dispute with licensee as it provides more detail on Apple lawsuit” and here is the key part:

There was plenty to discuss yesterday on Qualcomm’s call with analysts concerning the company’s latest quarterly results. On the positive side the company is in the final stages of its acquisition of NXP Semiconductors and reported that it is seeing strong sales in China, a market where it has had some well-publicised problems.

But throughout the call there was an Apple sized cloud hanging over the discussions as the company updated its position in its high-profile dispute with the iPhone manufacturer. It also revealed an additional dispute, unconnected with the Apple case, with an additional, unnamed licensee, which has resulted in an underpayment in royalties of more than $150 million.

That’s a lot of money. Apple is challenging this and we hope that Apple wins because it would also help Android OEMs if Apple got its way.

Meanwhile, as per Apple advocacy sites, patent troll Acacia is at it again. It is a patent troll with Microsoft connections and according to Apple Insider, “Apple and a handful of partner cellular carriers are the target of a new lawsuit leveled by Acacia Research subsidiary Cellular Communications Equipment, which alleges the iPhone maker infringed and continues to infringe on four patents developed by Nokia covering messaging, emergency alerts and other key cellular technologies.”

“Apple is challenging this and we hope that Apple wins because it would also help Android OEMs if Apple got its way.”A day earlier Apple Insider wrote that “Apple settles Unwired Planet patent suit for undisclosed amount” (via). Unwired Planet is a patent troll that now operates in Europe, too (it does for Ericsson what MOSAID/Conversant does for Microsoft through Nokia). It recently got its way in London and Germany is already attracting lots of patent lawsuits (many of which are initiated by trolls now), from companies that are not even German. Whose system is this? Here is a new press release titled “Motorola Solutions Files Patent Infringement Complaints in Germany Against Hytera Communications and Hytera Mobilfunk” (another case involving mobile).

Regarding the troll lawsuit in London, which we covered here very recently, this new guest post by Prof. Mark Patterson from Fordham Law (patent maximalists) covers it by promoting FRAND patent thickets. It’s mostly FRAND advocacy but it is supporting a notorious patent troll in the process. Here is the outline: “Last week Professor Jorge Contreras provided here an excellent summary of the April 5 decision of Mr. Justice Birss of the UK’s High Court of Justice in Unwired Planet International Ltd. v Huawei Technologies Co. Ltd., [2017] EWHC 711. The case addresses the problems that arise in determining FRAND (fair, reasonable, and non-discriminatory) licensing terms. Professor Contreras highlighted several novel aspects of the decision.”

“In China right now there is not a thicket but smog of low-quality patents.”What we have here is a disturbing passage of trolling venues into Europe (for which the EPO can be partly blamed). The same thing is happening in China, which the EPO seems to be imitating. In China right now there is not a thicket but smog of low-quality patents. SIPO’s quality control is a joke, resulting in protectionism for massive corporations that create a patent thicket in China. Here is Huawei, a government-connected company, having a go against Korea’s government-connected company and getting its way in Chinese courts. To quote government-connected Chinese press: “Huawei Technologies Co Ltd scored another point in its patent fight with its rival Samsung Electronics Co Ltd in China, which may weigh down on the South Korean company’s business in the world’s largest smartphone arena.” As IAM admitted yesterday, patent lawsuits in China skyrocket due to SIPO’s policy (patent microcosm profits at the expense of real workers). IAM says that “civil patent litigation cases increased by 20% compared to last year.” It also says “we’ll be getting a lot of statistical insight into China’s relatively closed court system in the coming days as the Supreme People’s Court releases white papers summing up how many IP case were filed and by whom in 2016.”

“This is anything but desirable and it’s antithetical to the patent system as it was perceived at the time of inception.”What it all boils down to is more patents and a lot more patent lawsuits over mobile devices; each such lawsuit will ultimately artificially elevate the price of phones and money will typically end up in the pockets of lawyers, not technologists. At the same time phones will have featured removed from them (intentionally hobbled), meaning inferior products available in the market. This is anything but desirable and it’s antithetical to the patent system as it was perceived at the time of inception.

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